Calcutta High Court
Ramsarup Industrial Corporation vs Additional Commissioner, Commercial ... on 29 January, 2002
Equivalent citations: (2002)2CALLT21(HC)
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. Both the above writ petitions are filed challenging the order passed by the authority i.e. Additional Commissioner, Commercial Taxes, West Bengal under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999. At the threshold, before entering into the merit. Court enquired about the maintainability of the writ petitions before the single Bench of this Court. The very foundation of such question is based on L. Chandra Kumar's case . The penultimate paragraph of the Judgment has given a new dimension in hearing the writ matters by a single Bench of High Court challenging the order of the taxation authority as regards levy, assessment, collection and enforcement of tax. According to the Supreme Court, the Tribunal made under Article 323B of the Constitution of Indian, is the Court of first instance as regards challenge of the above. Therefore, my reading is that the Tribunal is replacement of a single Bench of the High Court taking the writ matters. If anybody is desirous he can approach the Division Bench of this High Court against such order of the Tribunal.
2. However, by following such Article 323B of the Constitution of India, a Tribunal has been formed under the pronounced Act i.e. West Bengal Taxation Tribunal Act, 1987. The preamble speaks that the Tribunal is made for the adjudication or trial of any disputes, complaints or offence in respect to the matters relating to levy, assessment, collection and enforcement of any tax under any specified State Act in pursuance of Article 323B of the Constitution of India and for matters connected therewith and incidental thereto. Jurisdiction of the Tribunal has been provided under Section 6 of the Act. It will be applicable in the scheduled Acts framed under Section 5 therein. It has the Jurisdictional power and authority exercisable immediately before the day of implementation to all Courts including the High Court but excluding the Supreme Court of India. However, in view of L. Chandra Kumar's case (supra), the High Court is also included upto the single Bench being a Court of first instance but not the Division Bench being Court of second instance, which regularly we observe from the allocation of business. Section 8 provides extraordinary jurisdictional power under which a person aggrieved by any order passed or action taken pertaining to any matter within the jurisdiction of the Tribunal may make any application to it for the redressal of his grievance on any of the grounds referred in sub Section 3 therein. Sub Section 3 is as follows :
"3) Save as provided expressly in this Act, the Tribunal shall not ordinarily admit an applicable referred to in Sub-section (1) unless it is satisfied that-
(a) The applicant has availed of all remedial measures available to him under the relevant specified State Act; or
(b) The remedial measure available under the provisions of the relevant specified State Act are not adequate and shall cause undue hardship to the applicant; or
(c) The application referred to in sub Section (1) involves a substantial question of law relating to the interpretation of the Constitution of India or the specified State Act rules framed thereunder or of jurisdiction of any authorities under the specified State Act."
3. Mr. Sumit Chakroborty, learned counsel appearing in support of the petitioner harped on the explanation under Section 8(1) of the Act saying that for the purpose of this sub section 'order' means an order made by the authority under any specified State Act; and 'action' means action taken by any authority under any of the specified State Act. As I have understood, he want to say that order or action should be under the specified Schedule of the State Act. Therefore, when matter in relation to levy, assessment, collection and enforcement of any tax under the specified State Act of the schedule is available then and then alone the Jurisdiction of the Tribunal can be invoked but not otherwise. He cited my own judgment reported in 2001 (123) Sales Tax Cases 129 (Amitava Mitra v. State of West Bengal and Ors.]. However, both the cases are not similarly placed. There, I held in favour Of the petitioner because the West Bengal Taxation Tribunal Act, 1987 was not made applicable since the relevant Act was not scheduled at all. But, here the present Act is supplemental to the Act already scheduled. The only difference is that instead of amending the original Act a supplemental Act was introduced. Preamble of the Act clearly speaks that whereas it is expedient to provide for enforcement of payment of, and settlement of dispute relating to, arrear tax, penalty or interest under the West Bengal Sales Tax Act, 1994 etc, the Act in question will be applicable. Intention of the legislature to resolve the dispute in a summery manner under the Act from the stage it is pending but not the intention to by pass the parent Act which is to be governed by the Tribunal. Therefore, if any, dispute arises before the designated authority he can safely invoke the Jurisdiction of the Tribunal.
4. According to me a further discussion is needed about the Act. Section 2(e) of the Act deals with West Bengal Sales Tax and Central Sales Tax. Section 4 provides for making application for settlement of arrear tax, penalty or interest in dispute in respect of any period for which an assessment has been made under the relevant Act, and an appeal or revision relating thereto is pending on 31st day of March, 2001 before an appellate authority or revisional authority as the case may be. Section 4(A) provides that where any tax, penalty or interest from an applicant is in dispute in respect of any period for which an assessment has been made under the relevant Act, and where any application relating thereto is pending before the West Bengal Taxation or the High Court or Supreme Court then, notwithstanding anything contained elsewhere in this Act, the pendency will be treated as applicable for the purpose of availability of the scope of the Act, penalty or interest in dispute. Therefore the generalised scheme under the Act is that any pending matter in connection with tax, penalty, interest either under the State Act or under the Central Act pending before the authority including appellate or revisional as well as Tribunal, High Court or Supreme Court will be expeditiously disposed off in summery manner on being applied within the time frame. It has got nothing to do in connection with the invocation of tribunal on being dis-satisfied with the order of the authority about State Sales Tax. It stands as before.
5. A judgment reported in 1998 [31) Sales Tax Advises 101 (Niva Das v. Commissioner of Commercial Taxes and Ors.) cited by the learned counsel for the petitioners to establish that if anything done or refused to be done under any scheme then the same cannot be treated as levy, assessment, collection or enforcement of sales tax or matters connected or incidental thereto already held by the Tribunal. According to me if it is done the same is wrong appreciation of legal sanction. It cannot be said that dispute is not in connection with the levy, assessment, collection and enforcement of tax. The whole purpose is to raise the public exchequer by resolving the dispute.
6. According to the learned counsel appearing for the petitioners the explanation under Section 8(1) of the West Bengal Taxation Tribunal Act, 1987 says that 'order' or 'action' means an order or action under specified State Acts. Therefore when such specified State Act is unavailable under the schedule procedural Act cannot have any application. I sincerely believe that this is a hypertechnical approach. The explanation is not only restricted to specified State Acts but also order or action by the State Government in the matter of, and in relation to, levy, assessment, collection and enforcement of any tax. Therefore, the explanation alone cannot speak about the applicability of the Act into the specified State Acts. Moreover, technicality helps the justice not the injustice. No such case made out hereunder. Therefore, when the Tribunal has been formed following the constitutional mandate and when under L. Chandra Kumar's case (supra) the Supreme Court has already treated the Tribunal as a Court of first instance which can go even to the question of vires, I do not find any reason as to why redressal of the grievance under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 will not be available therein. Hence when I find that the matter is actually in relation to the assessment of tax I cannot construe otherwise than that the Tribunal has Jurisdiction to entertain, try and determine the question in connection with the order passed or to be passed by the appropriate authorities under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999.
7. Thus, I hold that the writ petitions are not maintainable before the single Bench of the writ Jurisdiction of the High Court and thereby dismissed. However, this order will not prevent the petitioner from taking recourse of law before the Tribunal under the West Bengal Taxation Tribunal Act, 1987 and in such case Tribunal will independently adjudge the merit of the matter which is untouched, in any event, any appeal or application. If made, before the Tribunal the same will not be treated as barred by the principle of res Judicata or limitation since the merit has not been touched by the Court as indicated above.
No order is passed as to costs.
This order will govern both the matters being W.P. No. 2496 of 2001 and W.P. No. 2498 of 2001.
Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this Judgment.
All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.